Generally, states have very similar laws regarding wills and trusts creation and requirements.
A will is a document that legally binds a person’s property to be distributed according to that person’s wishes after his or her death.
A trust provides a person options to distribute their property while he or she is still living so that their property is passed down according to their wishes after death.
Requirements for a valid will in Texas
To establish a valid will in Texas, the testator (the person who provides the will) must be at least 18 years old and has full mental capacity. The will must also be witnessed by at least two credible witnesses if it is written, and three credible witnesses if the will is oral. Texas allows for oral wills and holographic wills – wills that are entirely in the testator’s own handwriting. In Texas, nuncupative (oral) wills must be made during a person’s last sickness, at a residence where he or she has lived for at least ten days unless he or she dies away from home; the value of the will must be more than $30; and must be witnessed by three credible witnesses. A holographic will, one written entirely in the testator’s handwriting need not be witnessed by anyone and may be self-proven by an attached affidavit that the will is his or her last will.
Requirements for a valid trust in Texas
There are eight requirements to create a valid trust in Texas:
- The Settlor must have present intent to create the trust;
- The Settlor must have the capacity to transfer property into the trust;
- The trust must be written to obey the Statute of Frauds (be written and bear the signature of the settlor or her agent);
- The trust must not be created for an illegal purpose (requiring the trustee to commit a criminal act or an act contrary to public policy);
- The trust must identify the property and the property must be placed in the trust for the benefit of it’s beneficiaries;
- The trust must identify ascertainable (definite) beneficiaries;
- The trust may not violate the Rule Against Perpetuities.
Consulting with an attorney who is experienced in estate planning and creating wills and trusts will ensure that assets and property are distributed according to a testator’s wishes after she passes away.
